Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

The Fair Work Division of the Federal Court considered an application for an interlocutory order in the matter of Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd. The applicant union sought the reinstatement of an employee, Henk Doevendans, who had been dismissed by BHP Coal Pty Ltd. The union alleged that Doevendans' termination was for prohibited reasons under sections 340 and 346 of the Fair Work Act 2009 (Cth), specifically related to his participation in industrial action. The court was required to decide whether there was a serious question to be tried on the merits of the case and whether Doevendans should be reinstated pending the resolution of the dispute.

The central legal issues before the court included the discretionary factors to be considered in granting an interlocutory order for reinstatement, the implications of the decision in Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14, and the reversal of the onus of proof. The court also needed to weigh the conduct of Doevendans, who displayed a sign describing employees or contractors passing through a protest line as "No principles Scabs No guts." The union argued that Doevendans should be reinstated as a matter of fairness and to maintain the status quo until the substantive issues were determined.

The court held that a serious question to be tried arose on the merits of the case, primarily due to the reversal of the onus of proof in favour of the employee. The court noted that the conduct of Doevendans in displaying the sign was relevant but did not outweigh the need to maintain the status quo until the substantive proceedings were concluded. Therefore, the court ordered the reinstatement of Doevendans to his former employment with BHP Coal Pty Ltd, subject to certain conditions, pending the determination of the case. The court also allowed liberty to apply for further orders and reserved the matter of costs for later determination.